This rule establishes a corporate Commonwealth entity under section 87 of the Public Governance, Performance and Accountability Act 2013 to be named the Australian Digital Health Agency. Provides functions, governance arrangements, reporting requirements and transitional provisions to transfer assets and liabilities from the National E-Health Transition Authority Ltd.

(1) Each provision of this instrument specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1. The whole of this instrument

The day after this instrument is registered.

Note: This table relates only to the provisions of this instrument as originally made. It will not be amended to deal with any later amendments of this instrument.

(2) Any information in column 3 of the table is not part of this instrument. Information may be inserted in this column, or information in it may be edited, in any published version of this instrument.

(a) to coordinate, and provide input into, the ongoing development of the National Digital Health Strategy;

(b) to implement those aspects of the National Digital Health Strategy that are directed by the Ministerial Council;

(c) to develop, implement, manage, operate and continuously innovate and improve specifications, standards, systems and services in relation to digital health, consistently with the national digital health work program;

(d) to develop, implement and operate comprehensive and effective clinical governance, using a whole of system approach,to ensure clinical safety in the delivery of thenational digital health work program;

(e) to develop, monitor and manage specifications and standards to maximise effective interoperability of public and private sector digital health systems;

(f) to develop and implement compliance approaches in relation to the adoption of agreed specifications and standards relating to digital health;

(g) to liaise and cooperate with overseas and international bodies on matters relating to digital health;

(h) such other functions as are conferred on the Agency by this instrument or by any other law of the Commonwealth;

(i) to do anything incidental to or conducive to the performance of any of the above functions.

(2) In performing its functions under paragraphs (1)(a) and (c), the Agency must, if appropriate, act collaboratively with:

(1) This section applies to the appointment of Board members, including the Board Chair.

(2) One of the members must have the skills, experience or knowledge in the field mentioned in paragraph 19(3)(g) and must be an SES officer in the Department who isnominated in writing by the Secretary of the Department.

(3) One of the members must have the skills, experience or knowledge in the field mentioned in paragraph 19(3)(k) and must be nominated in writing by the Australian Health Ministers’ Advisory Council.

(4) One of the members must have the skills, experience or knowledge in the field mentioned in paragraph 19(3)(l) and must be nominated in writing by the Australian Health Ministers’ Advisory Council.

(5) Before the Health Minister appoints a person as a Board member, the Minister must:

(a) seek the support of all the State/Territory Health Ministers for the appointment; and

(b) be satisfied that the appointment is supported by a majority of the State/Territory Health Ministers.

(6) Despite subsection (5), the Health Minister may appoint a person as a Board member if:

(a) the Health Minister sought under that subsection the support of the State/Territory Health Ministers for an appointment (the proposed appointment) of the person as a Board member; and

(b) 30 days have passed since the Health Minister sought that support; and

(c) the Health Minister is satisfied that it is not possible to make the proposed appointment in accordance with that subsection or it is not known whether the proposed appointment can be made in accordance with that subsection.

(7) The Health Minister must, as soon as practicable after making an appointment in accordance with subsection (6), notify all the State/Territory Health Ministers in writing of the appointment.

(1) The Health Minister may, by written instrument, appoint a Board member to act as the Board Chair:

(a) during a vacancy in the office of Board Chair (whether or not an appointment has previously been made to the office); or

(b) during any period when the Board Chair:

(i) is absent from duty; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 (as those sections apply because of paragraph 13(1)(a) of the Legislative Instruments Act 2003).

(2) The Minister must, as soon as practicable after making an appointment under subsection (1), notify each State/Territory Health Minister of the appointment.

(1) The Health Minister may, by written instrument, appoint a person to act as a Board member other than the Board Chair:

(a) during a vacancy in the office of a Board member (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when a Board member:

(i) is acting as the Board Chair; or

(ii) is absent from duty; or

(iii) is, for any reason, unable to perform the duties of the office of Board member.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 (as those sections apply because of paragraph 13(1)(a) of the Legislative Instruments Act 2003).

(2) The Minister must, as soon as practicable after making an appointment under subsection (1), notify each State/Territory Health Minister of the appointment.

(3) A person must not be appointed to act as a Board member other than the Board Chair for more than 6 months.

(4) A person is not eligible for appointment to act as a Board member unless the person is eligible for appointment as a Board member under subsection 19(3).

(1) A Board member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed under subsection (5).

(2) A Board member is to be paid the allowances that are prescribed under subsection (5).

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

(4) However, a Board member is not entitled to be paid remuneration if he or she holds an office or appointment, or is otherwise employed, on a full‑time basis in the service or employment of:

(a) a State; or

(b) a corporation (a public statutory corporation) that:

(i) is established for a public purpose by a law of a State; and

(ii) is not a tertiary education institution; or

(c) a company limited by guarantee, where the interests and rights of the members in or in relation to the company are beneficially owned by a State; or

(d) a company in which all the stock or shares are beneficially owned by a State or by a public statutory corporation.

(1) If the Board Chair is appointed on a full‑time basis, he or she must not engage in paid employment outside the duties of the Board Chair’s office without the Health Minister’s approval.

Part‑time Board Chair

(2) If the Board Chair is appointed on a part‑time basis, he or she must not engage in any paid employment that, in the Health Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties.

Other Board members

(3) A Board member (other than the Board Chair) must not engage in any paid employment that, in the Health Minister’s opinion, conflicts or may conflict with the proper performance of his or her duties.

(1) The Health Minister may terminate the appointment of a Board member:

(a) for misbehaviour; or

(b) if the member is unable to perform the duties of his or her office because of physical or mental incapacity; or

(c) if the member fails, without reasonable excuse, to comply with section 29 of the Act or Subdivision B of Division 2 of Part 2‑2 of the Public Governance, Performance and Accountability Rule 2014 (which both deal with disclosure of material personal interests); or

(d) if the member is appointed on a full‑time basis—if he or she engages, except with the Health Minister’s approval, in paid employment outside the duties of his or her office (see subsection 25(1)); or

(e) if the member is appointed on a part‑time basis—if he or she engages in paid employment that, in the Health Minister’s opinion, conflicts or may conflict with the proper performance of the duties of his or her office (see subsections 25(2) and (3)); or

(f) if the Health Minister is satisfied that the performance of the member has been unsatisfactory for a significant period.

(2) The Health Minister must terminate the appointment of a Board member if:

(a) the member:

(i) becomes bankrupt; or

(ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with one or more of his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of one of more of his or her creditors; or

(b) if the member is appointed on a full‑time basis—he or she is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(c) if the member is appointed on a part‑time basis—he or she is absent, except on leave of absence, from 3 consecutive meetings of the Board.

Procedures relating to certain terminations

(3) Before the Health Minister terminates the appointment of a Board member (including the Board Chair) under subsection (1), the Health Minister must:

(a) seek the support of all the State/Territory Health Ministers for the termination; and

(b) be satisfied that the termination is supported by a majority of the State/Territory Health Ministers.

(4) Despite subsection (3), the Health Minister may terminate the appointment of a Board member (including the Board Chair) under subsection (1) if:

(a) the Health Minister sought under subsection (3) the support of all the State/Territory Health Ministers for the termination; and

(b) 30 days have passed since the Health Minister sought that support; and

(c) the Health Minister is satisfied that it is not possible to terminate the appointment in accordance with subsection (3) or it is not known whether the appointment can be terminated in accordance with subsection (3).

(5) The Health Minister must, as soon as practicable after terminating an appointment in accordance with subsection (4), notify all the State/Territory Health Ministers in writing of the termination.

Note 1: Section 15 of the Public Governance, Performance and Accountability Rule 2014 deals with the consequences of having a material personal interest and may affect whether a Board member can be present at a meeting and vote in relation to a matter.

Note 2: Section 33B of the Acts Interpretation Act 1901 (as that section applies because of paragraph 13(1)(a) of the Legislative Instruments Act 2003) contains further provisions about the ways in which Board members may participate in meetings.

(a) without meeting, a majority of the Board members entitled to vote on the proposed decision indicate agreement with the decision; and

(b) that agreement is indicated in accordance with the method determined by the Board under subsection (2); and

(c) all the Board members were informed of the proposed decision, or reasonable efforts were made to inform all the Board members of the proposed decision.

(2) Subsection (1) does not apply unless the Board:

(a) has determined that it may make decisions of that kind without meeting; and

(b) has determined the method by which Board members are to indicate agreement with proposed decisions.

(3) For paragraph (1)(a), a Board member is not entitled to vote on a proposed decision if the member would not have been entitled to vote on that proposal if the proposal had been considered at a meeting of the Board.

(4) The Board must keep a record of decisions made in accordance with this section.

(1) The Board Chair may, by written instrument, appoint a person to act as a member of a standing advisory committee:

(a) during a vacancy in the office of a member of a committee (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when a member of a committee:

(i) is absent from duty; or

(ii) is, for any reason, unable to perform the duties of the office of member.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 (as those sections apply because of paragraph 13(1)(a) of the Legislative Instruments Act 2003).

(2) A person must not be appointed to act as a member of a standing advisory committee for more than 6 months.

(3) A person is not eligible for appointment to act as member of a standing advisory committee unless the person is eligible for appointment as a member of the committee.

Note: See subsections 44(3), 48(3) and 50(3) for eligibility requirements for appointment to the Clinical and Technical Advisory Committee, the Consumer Advisory Committee and the Privacy and Security Advisory Committee.

(1) A member of a standing advisory committee (other than the Jurisdictional Advisory Committee) is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed under subsection (5).

(2) A member of a standing advisory committee (other than the Jurisdictional Advisory Committee) is to be paid the allowances that are prescribed under subsection (5).

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

(4) However, a member of a standing advisory committee is not entitled to be paid remuneration if he or she holds an office or appointment, or is otherwise employed, on a full‑time basis in the service or employment of:

(a) a State; or

(b) a corporation (a public statutory corporation) that:

(i) is established for a public purpose by a law of a State; and

(ii) is not a tertiary education institution; or

(c) a company limited by guarantee, where the interests and rights of the members in or in relation to the company are beneficially owned by a State; or

(d) a company in which all the stock or shares are beneficially owned by a State or by a public statutory corporation.

(5) The Health Minister may, by legislative instrument, prescribe:

(a) remuneration for the purposes of subsection (1); and

(b) allowances for the purposes of subsection (2).

(6) An office of Jurisdictional Advisory Committee member is not a public office for the purposes of Part II of the Remuneration Tribunal Act 1973.

(1) The Board Chair may grant leave of absence to a member of a standing advisory committee on the terms and conditions that the Board Chair determines.

(2) The Board Chair must notify the Health Minister and all the State/Territory Health Ministers if the Board Chair grants a member of a standing advisory committee leave of absence for a period that exceeds 3 months.

(1) The Board may terminate the appointment of a member of a standing advisory committee:

(a) for misbehaviour; or

(b) if the member is unable to perform the duties of his or her office because of physical or mental incapacity; or

(c) if the member:

(i) becomes bankrupt; or

(ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with one or more of his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or

(d) if the member is absent, except on leave of absence, from 3 consecutive meetings of the committee; or

(e) if the member engages in paid work that, in the Board’s opinion, conflicts or may conflict with the proper performance of his or her duties (see section 40).

Procedures relating to termination

(2) Before the Board Chair terminates the appointment of a member of a standing advisory committee (other than the Jurisdictional Advisory Committee), the Board Chair must consult the Health Minister and all the State/Territory Health Ministers.

(3) The Board Chair must not terminate the appointment of a member of the Jurisdictional Advisory Committee unless:

(a) in the case of a member mentioned in paragraph 46(1)(a)—the Board Chair has received a written direction from the Secretary of the Department; and

(b) in the case of a member mentioned in paragraph 46(1)(b)—the Board Chair has received a written direction from the head (however called) of the Health Department of the relevant State or Territory to terminate the member’s appointment.

(1) The Board may establish such advisory committees as the Board thinks appropriate to advise the Board on the performance of the Agency’s functions.

(2) The Board may determine, in relation to a committee established under subsection (1):

(a) the committee’s terms of reference; and

(b) the terms and conditions of appointment of the members of the committee; and

(c) the procedures to be followed by the committee.

(3) A committee established under subsection (1) may be constituted:

(a) wholly by Board members; or

(b) wholly by persons who are not Board members; or

(c) partly by Board members and partly by other persons.

(4) The Board may give directions to a committee established under subsection (1) in relation to the assistance that the committee is to provide to the Board. The committee must comply with those directions.

(1) The Jurisdictional Advisory Committee consists of the following members:

(a) a member to represent the Department;

(b) a separate member to represent each State, the Australian Capital Territory and the Northern Territory.

(2) The Board must not appoint the member mentioned in paragraph (1)(a) unless the person to be appointed has been nominated in writing by the Secretary of the Department.

(3) The Board must not appoint a member mentioned in paragraph (1)(b) unless the person to be appointed has been nominated in writing by the head (however called) of the Health Department of the relevant State or Territory.

(4) Meetings of the Jurisdictional Advisory Committee are to be chaired by the members mentioned in paragraph (1)(b) on a rotating basis.

(5) Subject to this section and any written directions of the Board, the Jurisdictional Advisory Committee may determine its own procedures.

The function of the Jurisdictional Advisory Committee is to provide advice to the Board in relation to all matters that are being considered, or are to be considered, by the Board in order to facilitate national consistency in relation to digital health.

(a) to provide advice to the Board about how to ensure key messages about digital health are communicated effectively to relevant stakeholders and health consumer groups;

(b) to provide advice and recommendations to the Board about recognising the interests of minority and special interest groups so as to ensure that their interests are taken into account in the design and implementation of digital health systems;

(c) to provide advice to the Board about establishing and maintaining collaboration with health consumers and providers in relation to digital health systems.

(2) In performing its functions, the Consumer Advisory Committee must consult consumer advocacy experts and expert clinicians to ensure that digital health systems:

(a) facilitate the use of digital health by consumers; and

(b) enhance efficiency and effectiveness of clinical care; and

(c) meet usability and utility requirements of consumers and clinicians.

After consulting the Health Minister, the Board may appoint a person to act as the CEO:

(a) during a vacancy in the office of the CEO (whether or not an appointment has previously been made to the office); or

(b) during any period, or during all periods, when the CEO:

(i) is absent from duty; or

(ii) is, for any reason, unable to perform the duties of the office.

Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901 (as those sections apply because of paragraph 13(1)(a) of the Legislative Instruments Act 2003).

(1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed under subsection (4).

(2) The CEO is to be paid the allowances that are prescribed under subsection (4).

(3) This section has effect subject to the Remuneration Tribunal Act 1973.

(b) if the CEO is unable to perform the duties of his or her office because of physical or mental incapacity; or

(c) if the Board is satisfied that the performance of the CEO has been unsatisfactory for a significant period; or

(d) if the CEO:

(i) becomes bankrupt; or

(ii) takes steps to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

(iii) compounds with one or more of his or her creditors; or

(iv) makes an assignment of his or her remuneration for the benefit of one or more of his or her creditors; or

(e) if the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

(f) if the CEO fails, without reasonable excuse, to comply with section 29 of the Act or section 16 of the Public Governance, Performance and Accountability Rule 2014 (which both deal with disclosure of material personal interests); or

(g) if the CEO engages, except with the Board Chair’s approval, in paid employment outside the duties of his or her office (see subsection 57(1)).

(2) Before the Board terminates the appointment of the CEO, the Board must notify the Health Minister and each State/Territory Health Minister that it is considering terminating the appointment.

(3) If the Board terminates the appointment of the CEO, the Board must notify the Health Minister and each State/Territory Health Minister of the termination.

(1) The staff of the Agency must be persons engaged under the Public Service Act 1999.

(2) For the purposes of the Public Service Act 1999:

(a) the CEO and the staff of the Agency constitute a Statutory Agency; and

(b) the CEO is the Head of that Statutory Agency.

Other employees

(3) In addition to the staff referred to in subsection (1), the Agency may employ, under written agreements, such persons as the Agency thinks necessary for the performance or exercise of any of its functions and powers.

(4) The terms and conditions of employment of persons employed under subsection (3) are such as the Agency determines from time to time.

(a) an Agency Head (within the meaning of the Public Service Act 1999) of an Agency (within the meaning of that Act); or

(b) a body established for a public purpose by or under a law of the Commonwealth;

for the services of officers or employees of the Agency referred to in paragraph (a) or body to be made available to assist the Agency in the performance of its functions.

(2) The Agency may arrange with the appropriate authority of a State or Territory for the services of officers or employees of the following to be made available to assist the Agency in the performance of its functions:

(a) the Public Service of the State or Territory;

(b) a body established for a public purpose by or under a law of the State or Territory.

(2) For paragraph 82(b) of the Act, each State/Territory Health Minister is prescribed as a State/Territory Minister for the Agency.

(3) For paragraph 82(c) of the Act, the following reports, documents and information are prescribed:

(a) the Agency’s corporate plan under section 35 of the Act;

(b) the Agency’s records under section 37 of the Act;

(c) the Agency’s annual performance statements under section 39 of the Act;

(d) the Agency’s accounts and records under section 41 of the Act;

(e) the Agency’s annual financial statements under section 42 of the Act;

(f) the Agency’s annual report under section 46 of the Act;

(g) a report or recommendation prepared by a standing advisory committee for consideration by the Board.

(4) For paragraph 82(d) of the Act, the circumstances in which a State/Territory Health Minister prescribed by subsection (2) may request the reports, documents and information prescribed by subsection (3) from the Board are as follows:

(a) for the Agency’s corporate plan under section 35 of the Act—the Board has given the corporate plan to the responsible Minister and Finance Minister;

(b) for the Agency’s records under section 37 of the Act—the Board has prepared the records;

(c) for the Agency’s annual performance statements under section 39 of the Act—the Board has prepared the annual performance statements;

(d) for the Agency’s accounts and records under section 41 of the Act—the accounts and records have been used in the preparation of the annual financial statements required by sections 42 and 48 of the Act;

(e) for the Agency’s annual financial statements under section 42 of the Act—the Board has prepared the annual financial statements and given them to the Auditor‑General;

(f) for the Agency’s annual report under section 46 of the Act—the Board has given the annual report to the Health Minister;

(g) for a report or recommendation prepared by a standing advisory committee for consideration by the Board—the Board has received the report or recommendation from the standing advisory committee.

As soon as practicable after the circumstances mentioned in subsection 67(4) arise in relation to a report, document or information prescribed by subsection 67(3), the Board must inform each State/Territory Health Minister that he or she may request the report, document or information from the Board.

(1) If a State/Territory Health Minister requests a report, document or information prescribed under subsection 67(3) in the circumstances prescribed under subsection 67(4), the Board must give the report, document or information to the State/Territory Health Minister.

(2) The Board must give the report, document or information to the State/Territory Health Minister within 30 days after the State/Territory Health Minister’s request.

assets official, in relation to an asset other than land, means the person or authority who, under a law of the Commonwealth, a State or a Territory, under a trust instrument or otherwise, has responsibility for keeping a register in relation to assets of the kind concerned.

exempt matter: see section 81.

instrumentincudes:

(a) an agreement or undertaking; and

(b) a notice, authority, order or instruction; and

(c) an instrument made under an Act or regulations;

but does not include this instrument or any certificate or other instrument made under this instrument.

land means any legal or equitable estate or interest in real property, whether actual, contingent or prospective.

land registration official, in relation to land, means the Registrar of Titles or other proper officer of the State or Territory in which the land is situated.

On the transfer day, the assets and liabilities of NEHTA Limited cease to be assets and liabilities of NEHTA Limited and become assets and liabilities of the Agency, without any conveyance, transfer or assignment. The Agency becomes the successor in law in relation to those assets and liabilities.

Note: Any liability, such as any actual, contingent or prospective liability to pay a Commonwealth tax, that arises contemporaneously with the transfer of assets and liabilities on the transfer day would (in addition to liabilities that have already arisen before transfer day) be transferred to the Agency under this section.

(1) This section applies to a record or document that, immediately before the transfer day, was in the custody of NEHTA Limited.

(2) If the record or document relates to an asset or liability that, because of section 74, becomes an asset or liability of the Agency, then the record or document is to be transferred into the custody of the Agency on or after the transfer day.

(a) that were pending in any court or tribunal immediately before the transfer day; and

(b) to which NEHTA Limitedwas a party.

(2) On and after the transfer day, the Agency is substituted for NEHTA Limited as a party to the proceedings.

(3) Without limiting subsections (1) and (2) and despite regulation 5.15 of the Patents Regulations 1991, the Agency is substituted for NEHTA Limited as an opponent in opposition proceedings before the Commissioner of Patents.

(2) If the instrument relates to an asset or liability that, because of section 74, becomes an asset or liability of the Agency, then the reference to NEHTA Limited has effect, at and after the transfer day, as if it were a reference to the Agency.

(3) This section does not, by implication, prevent the instrument from being varied or terminated on or after the transfer day.

(1) If the operation of this Part would result in an acquisition of property (within the meaning of paragraph 51(xxxi) of the Constitution) from a person otherwise than on just terms (within the meaning of that paragraph), the Commonwealth is liable to pay a reasonable amount of compensation to the person.

(2) If the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.